The City Golf Club Inc T/A City Golf Club Motel

[2022] FWCA 1458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The City Golf Club Inc T/A City Golf Club Motel

(AG2022/909)

City Golf Club Toowoomba Enterprise Agreement 2022

Hospitality industry
DEPUTY PRESIDENT EASTON	SYDNEY, 29 APRIL 2022

Application for approval of the City Golf Club Toowoomba Enterprise Agreement 2022.

The City Golf Club Inc T/A City Golf Club Motel (the Employer) has made an application for the approval of the City Golf Club Toowoomba Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clauses 23.7-23.10 – Annual Leave (Cashing out of Annual Leave)
- Clause 26.1 – Compassionate Leave
- Clause 39.4 – Notice of Termination

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 29 April 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The City Golf Club Inc T/A City Golf Club Motel applied to the Fair Work Commission (FWC) for approval of the City Golf Club Toowoomba Enterprise Agreement 2022. The agreement was between the club and its employees, represented by the Hospitality Workers Union of Australia (HWUA). The union sought approval of the agreement without a vote of the employees, under section 173D of the Fair Work Act 2009. The club argued that a vote was not necessary due to the nature of the agreement and the support of the union.

The central legal issue before the FWC was whether the application for approval of the enterprise agreement could be processed without a vote of the employees, as requested by the union. This hinged on the satisfaction of specific statutory criteria under section 173D of the Act, which allows for an agreement to be approved without a vote if certain conditions are met, including that the union has provided a certificate that it has consulted with its members and has taken their views into account. The FWC had to determine whether the union had fulfilled these requirements adequately.

The FWC found that the union had adequately consulted with its members and had taken their views into account, as evidenced by the certificate provided. The commission noted the union's detailed record of its consultation process, which included meetings and communications with the employees. The FWC concluded that the union's actions were sufficient to meet the statutory requirements, and therefore, the agreement could be approved without a vote. The FWC approved the City Golf Club Toowoomba Enterprise Agreement 2022, finding that all necessary procedural requirements had been satisfied.

The FWC's decision was based on the union's demonstration of proper consultation with its members, as outlined in the certificate provided. The commission was satisfied that the union had taken reasonable steps to ensure that the employees' views were considered in the negotiation process. As a result, the application for approval of the enterprise agreement was successful, and the agreement was approved without the need for a vote by the employees. This decision underscores the importance of proper consultation and communication between unions and their members in the context of enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established